Appeal of Taylor

• Decision Date: 07 May 1975
• Docket Number: No. 7514DC59,7514DC59
• Citation: 25 N.C.App. 642,215 S.E.2d 789
• Court: North Carolina Court of Appeals
• Parties: Appeal of Lawrence TAYLOR.

Page 789

215 S.E.2d 789

25 N.C.App. 642

Appeal of Lawrence TAYLOR.

No. 7514DC59.

Court of Appeals of North Carolina.

May 7, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Parks H. Icenhour, Raleigh, for the State.

Loflin, Anerson & Loflin by Thomas F. Loflin, III, and Ann F. Loflin, Durham, for respondent-appellant.

BRITT, Judge.

The Attorney General contends that this case is moot because of respondent's unconditional release from John Umstead Hospital on 25 October 1974. This court has held that an appeal is not moot solely because the period of commitment has expired. In re Carter, 25 N.C.App. 442, 213 S.E.2d 409 (filed on 16 April 1975). Therefore, we consider the appeal on its merits.

By his first assignment of error, respondent contends the court erred in denying his motion to strike the custody order and suppress all documents arising therefrom, for one or both of the following reasons. The petition upon which the custody order was based did not comply with G.S. § 122--58.3; the custody order itself was unlawful for that it was not executed by an impartial official. (The magistrate who executed the order is respondent's brother.)

Suffice it to say, we have carefully considered this assignment and find it to be without merit.

In his second assignment of error, respondent contends the court erred in denying his motion for a trial by jury of all issues of fact. We find no merit in this assignment.

Respondent relies on Article I, § 25, of the State Constitution which guarantees the right of jury trial in Civil cases. In Groves v. Ware, 182 N.C. 553, 109 S.E. 568 (1921), the court held that the right to trial by jury guaranteed by this section (formerly § 19) of the Constitution applies only to cases in which the prerogative existed at common law or by statute in existence at the time the Constitution was adopted (1868); the court further held that right to trial by jury did not exist at common law in insanity proceedings. The statute under which respondent was committed was ratified 13 April 1974 and became effective 12 June 1974. (Ch. 1408, 1973 Session Laws).

In the case of In re Cook, 218 N.C. 384, 11 S.E.2d 142 (1940), an inquisition of lunacy proceeding, the court said: 'It is not contemplated that there should be a jury trial of the issue in a matter of this kind. . . .' See also, In re Annexation Ordinance, 284 N.C. 442, 451, 202 S.E.2d 143 (1974) and In re Bonding Co., 16 N.C.App. 272, 192 S.E.2d 33, Cert. den., 282 N.C. 426, 192 S.E.2d 837 (1972), where it was held that the right to jury trial preserved under Article I, § 25, applies only in cases in which the prerogative existed at common law or by statute at the time the State Constitution was adopted. We hold that respondent was not entitled to a jury trial.

In his third assignment of error, respondent contends that the court erred in finding that he was imminently dangerous to himself and others. The judge found as a fact the following:

. . . That while in jail he became violent and...